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IMMIGRATION/MARRIAGE: A (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 825

(Court of Appeal; Pill, Hooper, Wilson LJJ; 30 July 2009)

The Afghani husband was granted refugee status in the UK, with leave to remain for 5 years. Subsequently he visited Pakistan, where he married the wife, who was also an Afghani. The husband visited Pakistan at least three times, to visit the wife. The wife had given birth to a child and was heavily pregnant with a second when her application to join the husband in the UK was refused. It was accepted by the authorities that this was a lawful, genuine and subsisting marriage. It was also accepted that the husband was unable to move permanently to Pakistan. However, the wife's appeal against the refusal was dismissed.

The appeal tribunal noted that the rules allowing the wife of a refugee to enter applied only to marriages entered into before refugee status was granted; otherwise, the refugee had to wait until he was settled, which took at least 5 years. The tribunal expressed itself unable to identify any public interest being served by the omission from the Immigration Rules of any provision for a refugee who was not yet settled in the country to bring his spouse into the country if he married her abroad after getting asylum, but considered that European Convention on Human Rights, Art 8 could not simply be used to plug gaps in the Rules. They held that Art 8 was not engaged in this case, because family life had not been established.

Family life existed between the husband and wife, and the tribunal had been wrong to find otherwise; the appeal was allowed.

There was no authority for the proposition that a lawful, genuine and subsisting marriage fell outside the ambit of family life. It was inconceivable that a party to the ECHR could prevent a new and genuinely married couple from cohabiting, and then successfully claim that, because of the absence of cohabitation, there was no family life. There was no doubt that the interference with family life which would result from not allowing a husband and his heavily pregnant wife in a genuine and subsisting marriage to cohabit had consequences of such gravity as potentially to engage Art 8.

Given that the tribunal had been unable to identify the relevant public interest being served by this gap in the rules, it followed that the interference was not 'proportionate to the legitimate public end sought to be engaged'.

The question whether there was such a public interest was left for another case; the Secretary of State could not re-open the question in this case.